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App. 3d", "case_ids": [ 8499363 ], "pin_cites": [ { "page": "851" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/194/0839-01" ] } ], "analysis": { "cardinality": 2140, "char_count": 76128, "ocr_confidence": 0.825, "pagerank": { "raw": 4.788711984992452e-07, "percentile": 0.9309986798458134 }, "sha256": "0c2955f03edb925383283816682a76a54001aa9b97c2fcce83cbea83dfdddeeb", "simhash": "1:abbe90647785bde7", "word_count": 12411 }, "last_updated": "2023-07-14T16:53:50.540896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "KNECHT, J., concurs." ], "parties": [ "In re MARRIAGE OF RONALD L. CARPEL, Petitioner-Appellee, and SUSAN K. CARPEL, n/k/a Susan K. Kolinger, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn May 1986, the trial court entered a judgment of dissolution of the marriage of petitioner, Ronald Carpel, and respondent, Susan Carpel (now Kolinger). Since that date, Susan and Ronald have both filed numerous petitions to amend or modify that judgment. In April 1991, the trial court entered an order modifying the judgment of dissolution by increasing Ronald\u2019s child support payments, but also allowing Ronald longer, uninterrupted visitation with Russell, the parties\u2019 son. The court also fined Susan $1,000 for contempt of court, denied her request for extended maintenance, denied her request for attorney fees and other miscellaneous relief, and reaffirmed its order for Ronald\u2019s accounting for Susan\u2019s share of his attorney fees.\nSusan appeals, arguing that the trial court (1) improperly set Ronald\u2019s child support too low, (2) incorrectly calculated her share of fees from Ronald\u2019s former legal practice in Decatur, (3) erroneously found her in contempt of court, (4) improperly denied her request for continued maintenance, (5) erroneously excluded evidence of her lifestyle during their marriage, (6) erroneously lifted the requirement that Ronald provide her with a copy of his tax returns, (7) erroneously denied her petition for attorney fees, and (8) improperly denied her visitation during the summer months when Russell stays with Ronald.\nWe affirm in part, reverse in part, and remand with directions.\nI. Background\nRonald and Susan married in 1969 in Florida. They were living in Decatur, Illinois, when, after 17 years of marriage, their marriage ended in 1986. Ronald, a 46-year-old attorney, moved back to Florida just before the 1986 judgment of dissolution. In that judgment, the court awarded Susan, a 45-year-old homemaker, custody of their three children: Leslie, born in August 1970; Ryan, born in February 1973; and Russell, born in January 1981. The court awarded Ronald visitation rights with the children over school breaks as follows: one week during winter break, the entirety of their spring break, and six weeks during their summer break. The court ordered Susan to choose the Christmas visitation week in even-numbered years and Ronald to choose the Christmas visitation week in odd-numbered years, with the selecting parent notifying the other by the first of October preceding the vacation period. Conversely, Ronald would choose the summer visitation period in even-numbered years and Susan would choose in odd-numbered years. The court ordered Ronald to pay the children\u2019s travel expenses.\nThe court expressly found that \u201crehabilitative maintenance to [Susan] is appropriate and proper\u201d and awarded Susan $750 per month in maintenance for four years and ordered Ronald to pay $250 per month per child in child support. Upon Susan\u2019s remarriage or the end of the four-year period, the court ordered that Susan\u2019s maintenance would cease and the child support would increase to $375 per month per child. The court specifically stated that \u201c[t]his maintenance and support award is based upon Mr. Carpel\u2019s present income status,\u201d but did not indicate whether the court retained jurisdiction to modify the maintenance or support award at the end of or during the maintenance period. Ronald was also ordered to provide health insurance for the minor children.\nThe court awarded Susan the marital residence in Decatur, some vacant land in Hickory Point Estates, $25,000 from Ronald\u2019s pension fund, all the household furniture, her jewelry, crystal, art work, a grand piano, a mink coat, and a Buick station wagon. The court awarded Ronald a Cadillac, a Dodge Van, the full ownership interest in a certificate of deposit held by his disbanded Decatur law firm, the entire interest in certain oil investments, a $37,000 promissory note due him, certain stocks the court described as non-marital property, all his clothes, his jewelry, a silver service, and some other personal items. The court evenly divided the parties\u2019 municipal bonds, their 1984 joint income-tax refund, and their interest in a real estate partnership known as Meadowridge Partnership. The court also ordered Ronald to pay all indebtedness of the parties incurred while married, including Susan\u2019s attorney fees.\nFinally, the court awarded Susan 30% of Ronald\u2019s interest in pending cases he referred to other law firms when he moved to Florida and 50% of Ronald\u2019s contingent fee from a million-dollar judgment affirmed in Lancaster v. Norfolk & Western Ry. Co. (7th Cir. 1985), 773 F.2d 807, which was pending on appeal at the time of the 1986 judgment of dissolution. Ronald submitted a sealed list of the cases he referred to other firms, and the court ordered him to provide Susan with an accounting of them every six months. The court concluded its order by \u201cexpressly retaining] jurisdiction of this cause for the purpose of enforcing all the terms of this [j]udgment of [dissolution of [m]arriage.\u201d\nIn November 1987, Susan filed a petition for modification, alleging that Ronald had testified that his 1986 income was about $50,000, when it actually was $208,443. (Ronald reported his gross income as $155,852 on his 1986 income-tax form.) In December 1987, Ronald filed his own petition for modification as well as a response to Susan\u2019s petition, claiming that he had incurred substantial debt when he opened his own law practice and could neither afford an increase in support and maintenance, nor continue to pay the then-existing support and maintenance awards. In January 1988, Ronald filed a motion requesting the court to reduce those awards retroactively if the court were to grant his petition to reduce them.\nAlthough the trial court set a hearing on these petitions for February 19, 1988, no docket entry appears for this date, and the trial court entered no written order or memo. Thus, although it appears that the parties settled this particular dispute out of court, the record contains no documentation of such a settlement.\nIn July 1988, Ronald filed another petition for modification, requesting the court to order custody of Ryan transferred to Ronald. The petition alleged that turmoil in Susan\u2019s home, her general instability, and her interference with Ronald\u2019s relations with the children had upset Ryan tremendously, making him want to live with his father. Later that month, Ronald filed a motion to terminate child support for Leslie, who would turn 18 in August 1988. In response, Susan filed a petition to modify the judgment of dissolution that basically restated the allegations in her November 1987 petition for modification. Susan also filed a petition to enforce the judgment of dissolution, claiming that Ronald had incorrectly calculated the taxes due on the fees he earned from cases he referred to other law firms, thereby causing Susan to receive less than her share of those fees.\nIn August 1988, the court conducted a hearing on this round of petitions and motions and awarded temporary custody of Ryan to Ronald. The court also appointed a guardian ad litem for both Russell and Ryan. At this hearing, Ronald filed a petition for rule to show cause, requesting the court to find Susan in indirect contempt of court for not using her best efforts to foster the respect, love, and affection of the children for him as required by the judgment of dissolution. The record does not indicate that the court ever ruled on this petition. In September 1988, before the full hearing on custody of Ryan, Ronald filed an additional petition that requested the court to award custody of Russell to Ronald if it also awarded him custody of Ryan.\nIn November 1988, the trial court issued a memorandum opinion requiring Ronald to pay for Leslie\u2019s college education. The court based its order on the cost of attending a State university ($7,726 plus expenses), not on the cost of attending the private school Leslie actually attended ($9,500 plus expenses) because Ronald was not consulted before Leslie and Susan chose a private school. The court then set Ronald\u2019s obligation at $5,794.50 for the remaining 1988-89 school year and $7,726 for the following three years.\nIn December 1988, Ronald filed a motion for rehearing on his obligation to pay Leslie\u2019s college expenses, alleging that he had incurred an additional $20,000 in debt from his law practice and developed a cardiac condition (\u201cleft ventricular hypertrophy and mi-tral regurgitation\u201d) that caused hypertension and forced him to reduce his workload. The docket sheet shows no action on this motion or on other pending petitions until June 1989, when Leslie (then 18 years old) filed a petition to recover property from Susan. This petition was notarized in Florida and drafted in perfect form without any attorney of record shown thereon. Ronald concurrently filed a petition for the return of property, requesting that, in addition to the property listed in Leslie\u2019s petition, the court also order Susan to return Leslie\u2019s mouth retainer to her. Apparently, this round of petitions arose when \u2014 according to a September 1989 filing by Ronald \u2014 Susan had chastised Leslie for wanting to visit her father and tried to prevent her from doing so. In June 1989, Leslie allegedly had to sneak out of Susan\u2019s house without her belongings in order to travel to Florida.\nIn July 1989, after a hearing on the custody of the children, the court ordered Russell and Ryan to stay with Ronald from July 7 to August 16, whereupon they would return to Decatur. Ryan would then stay with his mother until September 5, when he would return to Florida for school. In August 1989, the court ordered that Leslie, accompanied by a friend, could recover her property (presumably including the mouth retainer) from Susan\u2019s house.\nIn August 1989, Ronald filed another petition requesting the court to transfer custody of Russell to Ronald, this time claiming \u201c[t]hat Susan *** is not emotionally fit nor proper to have the care, custody or control of Russell Carpel.\u201d\nIn September 1989, without taking action on Ronald\u2019s August petition, the court set Ryan and Russell\u2019s visitation schedule for winter and summer 1990 similar to the 1989 summer visitation order, such that Ryan would travel to Illinois for a visit, Russell would travel with Ryan back to Florida to visit with his father, and then Russell, alone, would return to Illinois. The roles and order of locations would reverse for summer visitation.\nSusan filed a wave of petitions in September 1989. The first, a petition for accounting, claimed that Ronald had again not paid her the share she was due on fees he received for cases he referred to other firms. The second and third petitions requested the court to increase child support and to continue and increase the maintenance award that would expire in February 1990 (the end of the four-year period set in the original judgment of dissolution). In both petitions, she noted that she had spent a great deal of money on attorney fees and could no longer adequately support herself or her children.\nIn October 1989, Ronald filed a response to the petition to increase child support, a motion to strike the petition for accounting, and a motion to strike the petition to modify maintenance. Ronald also filed a petition for rule to show cause why the court should not hold Susan in contempt for refusing to pay Leslie\u2019s expenses, as previously ordered, and a petition for child support for Ryan, now that he lived with Ronald.\nIn December 1989, before the court had ruled on Ronald\u2019s petition to transfer custody of Russell, Susan filed her own petition to transfer custody of Ryan back to her. The petition alleged that Ryan had changed his mind about wanting to live with Ronald in Miami and wanted to move back to Decatur.\nAt a hearing in January 1990, the court ordered that the maintenance of $750 per month and the child support of $250 per month per child contained in the original judgment of dissolution would continue through February 1990 (the end of the original four-year maintenance period), whereupon Ronald would pay $625 per month per child in support. The court labeled this order an \u201cinterim order,\u201d thereby continuing the maintenance and support issues indefinitely into the future. The court also ordered the family to undergo medical and psychological examinations.\nIn May 1990, both Susan and Ronald filed petitions for rule to show cause. Susan claimed that the court should hold Ronald in contempt for failing or refusing to pay for and undergo the psychological examination the court ordered. She also requested the court to allow her unhindered phone calls and visitation with Russell when he lived with Ronald in Florida during the summer of 1990. In his petition, Ronald claimed \u2014 half a year after the fact \u2014 that the court should hold Susan in contempt for not getting Russell on the plane on time for his Christmas 1989 visit.\nLater in May 1990, Susan withdrew her contempt petition when the court ordered that Ronald undergo a psychological examination on June 15, 1990. Based on a stipulation by the parties, the court also awarded custody of Ryan back to Susan. Finally, the court specifically denied Susan visitation for the time when Russell visits Ronald in Florida but allowed her two phone calls per week.\nOn separate dates in July, August, and November of 1990, the court held further hearings on Susan\u2019s petition for accounting for her share of Ronald\u2019s referral fees (including the fees on the Lancaster case). The court also held hearings on Susan\u2019s petition for maintenance and additional support that the court had addressed in an interim order and continued in January 1990.\nWith regard to the issue of Susan\u2019s share of the referral fees, Susan\u2019s expert testified that after subtracting income taxes on the referral fees, Ronald owed Susan either $32,628.75 (based on a \u201cpro-rata\u201d method that divides the fee collected by the tax rate used by Ronald for that year) or $30,335.94 (based on the \u201chighest rate\u201d method that takes the fee collected, subtracts it from the actual tax return, recalculates the tax without the fee, and then subtracts the difference in taxes from the fee). More than two-thirds of both figures represent the fee from the Lancaster case \u2014 in which the United States Supreme Court denied certiorari in March 1989 (Norfolk & Western Ry. Co. v. Lancaster (1987), 480 U.S. 945, 94 L. Ed. 2d 788, 107 S. Ct. 1602)\u2014and for which Ronald received a $233,333 fee. The figures included interest of 8% annually on the unpaid amounts.\nSusan testified that the Decatur residence awarded to her burned down after the divorce. After it was rebuilt, she had to sell it because she could not afford the mortgage payments. She had since rented a duplex. She had not found full-time work because of her limited skills and because of her knee problems. She conceded that her knees ached because she did aerobics twice a day.\nRussell, Ryan, and Leslie all testified in camera. Russell testified primarily about his preference on visitation and about how the bitterness between his parents affected him. Ryan testified primarily to show the court how Ronald and Susan have used him as a weapon to hurt each other and to alert the court that they might do the same thing with Russell. Leslie\u2019s testimony corroborated Ryan\u2019s and discussed Susan\u2019s current lifestyle and knee problems, basically supporting Susan\u2019s testimony.\nThe trial court took the matter under advisement and issued a memorandum decision in March 1991 and an order of modification in April 1991. In that order, the court increased Ronald\u2019s child support obligation to $1,400 until July 1991, when Ryan would graduate from high school. The court directed that child support would be $1,100 monthly after July 1991. The court also denied Susan\u2019s request for further maintenance, allowed Ronald increased visitation with Russell for two uninterrupted months each summer, found Susan in contempt and fined her $1,000, and ordered Ronald to pay the outstanding amount on Susan\u2019s share of the referral fees minus the $1,000 contempt fine and other expenses. Susan appeals this order.\nII. Analysis\nA. Child Support\n1. The Standard of Review\nUnder sections 505 and 510 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, pars. 505, 510), the trial court has discretion to set and modify child support as it deems appropriate. (In re Marriage of Harmon (1991), 210 Ill. App. 3d 92, 96, 568 N.E.2d 948, 951.) We will not disturb any child support award or modification unless the trial court has abused its discretion. (See Blisset v. Blisset (1988), 123 Ill. 2d 161, 167, 526 N.E.2d 125, 127-28.) An abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court. In re Marriage of Partney (1991), 212 Ill. App. 3d 586, 590, 571 N.E.2d 266, 269.\n2. The Award for Future Support\nSusan first argues that the trial court erred in setting the amount of child support that Ronald must pay. Section 505(a) of the Act requires the trial court to set the minimum amount of child support for one child at 20% of the supporting parent\u2019s net income and at 25% of the supporting parent\u2019s net income for two children, unless the court finds a reason to deviate from these percentages. (HI. Rev. Stat. 1991, ch. 40, par. 505(a).) Section 505(aX3) defines net income as gross income minus the following: Federal and State income tax, social security payments, mandatory retirement contributions, union dues, dependent and individual health care insurance premiums, prior support or maintenance obligations, debt repayments reasonable and necessary to produce income, medical expenses necessary to preserve life or health, and other reasonable expenditures for the benefit of the child and other parent, exclusive of gifts. Ill. Rev. Stat. 1991, ch. 40, par. 505(aX3); see also Carnes v. Dressen (1991), 215 Ill. App. 3d 166, 169-70, 574 N.E.2d 845, 847.\nIn its memorandum opinion modifying Ronald\u2019s child support payments, the court explained the following:\n\u201c[G]iven the variable nature of [Ronald\u2019s] professional income, *** taking an average of his income over the years since entry of the [original] Judgment is the only equitable method for establishing income for purposes of calculating child support. It would not be fair to [Ronald] to base child support on a high income year anymore than it would be fair to [Susan] to base child support on a low income year.\u201d\nAfter setting the above amounts of child support, the court added the following as a separate, concluding paragraph:\n\u201cThe Court notes that the amount of child support ordered is above the guidelines, particularly when the medical expense obligation imposed on Plaintiff [in a separate section of the order] is added.\u201d\nThe evidence before the trial court revealed that Ronald earned far more than the trial court attributed to him. Although the court did not state what it found Ronald\u2019s average income \u201cover the years\u201d to be, we can use the statutory rates and the support the court ordered to calculate what the trial court must have estimated Ronald\u2019s income to be. Child support of $1,400 per month represents 25% of a $67,200 annual net income; $1,100 per month represents 20% of a $66,000 annual net income. No evidence in this record supports these figures as Ronald\u2019s anticipated annual net income. Thus, the trial court apparently did not first calculate Ronald\u2019s net income (as defined in section 505(a) of the Act) and then calculate 25% and 20% of that figure. Indeed, not only did the trial court not state how or what it determined Ronald\u2019s income \u201cover the years\u201d to be, it also did not state what years it counted or whether it believed any particular year reasonably forecasted Ronald\u2019s future income.\nIn stark contrast to these $67,200 and $66,000 figures, Ronald\u2019s tax returns indicate that he earned the following annual gross incomes since 1986:\n1986: $155,852\n1987: $171,851\n1988: $ 28,156\n1989: $328,496\n1990: $ 3,434 (first 10 months estimated)\nAverage since 1986: $137,695\nAverage since 1987: $133,155\nAverage since 1988: $120,257\n1989 & 1990: $166,308\n(We note that the income of $3,434 that Ronald estimated for the first 10 months of 1990 is well below the $328,496 income from 1989, and most likely does not reflect his actual 1990 income. We also note that the estimate did not come from an affidavit or testimony, but from a statement by Ronald\u2019s accountant that contained the following disclaimer in capital letters: \u201cWE HAVE NOT AUDITED OR RECEIVED THE ACCOMPANYING FINANCIAL STATEMENTS AND SUPPORTING SCHEDULES AND, ACCORDINGLY, DO NOT EXPRESS AN OPINION OR ANY OTHER FORM OF ASSURANCE ON THEM.\u201d)\nAllowing Ronald the deductions set forth in section 505(aX3) of the Act, the evidence presented at trial shows he earned approximately the following net income in 1986 and the years since:\n1986: $155,852 (gross income)\n- $ 48,562 (Federal income tax)\n-$ 3,003 (SSI)\n- $ 7,500 (maintenance)\n- $ 3,820 (child medical and transport)\n- $ 9,000 (child support)\n$ 83,967\n1987: $171,851 (gross income)\n- $ 55,955 (Federal income tax)\n- $ 9,000 (maintenance)\n- $ 3,485 (child medical and transport)\n- $ 9,000 (child support)\n$ 94,411\n1988: $ 28,156 (gross income)\n- $ 5,576 (Federal income tax)\n- $ 9,000 (maintenance)\n- $ 4,243 (child medical and transport)\n- $ 9,000 (child support \u2014 estimated\nbecause of Leslie\u2019s college)\n$ 337\n1989: $328,496 (gross income)\n- $ 84,308 (Federal income tax)\n- $ 9,000 (maintenance)\n- $ 6,326 (child medical and transport)\n- $ 13,726 (child support \u2014 estimated\nbecause of Leslie\u2019s college)\n$215,136\n1990 Figures not available\nAverage 1986 through 1989: $ 98,463\nAverage without 1988: $ 131,171\nThe above figures were presented by Ronald and thus likely serve as the lower boundary of his net income over the years in question. Further, they do not fully indicate Ronald\u2019s anticipated income because (1) he was a salaried lawyer in 1986 and part of 1987, (2) he experienced certain nonrecurring business expenses in 1988 when he became a sole practitioner in Florida, thereby explaining his extraordinarily low income for that year, and (3) he now has his own private practice specializing in personal injury law, which produced significant income in 1989, its first full year of business.\nWe acknowledge that Ronald\u2019s self-employment in his own law firm \u2014 specializing in personal injury litigation \u2014 complicates matters. Both his self-employment and the nature of personal injury practice may make his income fluctuate unpredictably. Despite these complications, the trial court must evaluate the evidence presented to determine Ronald\u2019s net income, thereby complying with section 505(a) of the Act.\nWe emphasize that tax-reported income does not provide conclusive evidence of either Ronald\u2019s gross or net income under the Act, which provides its own guidelines on deductions from business income that reflect different policies and purposes than the Federal tax code. As an example of this difference, Ronald claimed $146,550 on his 1988 tax forms as fee income from his then-solo practice in 1988 (which did not constitute his only income), but trimmed this income down to $28,156 in personal gross income. Although we do not question that his business deductions were appropriate under the Federal tax code, we doubt that this 81% difference reflected only reasonable and necessary business expenses under section 505(aX3)(h) of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 505(aX3)(h)). Even if they did, they would likely constitute one-time expenses he will not incur again soon.\nBecause Ronald\u2019s average net income from the past few years exceeds $67,000, and, more importantly, his anticipated future income most certainly exceeds $67,000, the trial court apparently set his child support payments below the statutory guidelines of section 505(aXl) of the Act. Although a trial court may deviate from those guidelines in an appropriate case when the court makes express findings as to its reasons for doing so (Ill. Rev. Stat. 1991, ch. 40, par. 505(aX2)), the only comment of the court on this subject \u2014 \u201cThe court notes that the amount of child support ordered is above the guidelines ***\u201d (emphasis added) \u2014 reveals that it thought it was burdening Ronald in excess of the statutory guidelines. Accordingly, we conclude that the court\u2019s determination of a child support order of less than the guidelines call for is due to the court\u2019s miscalculation of Ronald\u2019s net income and is not due to any intent of the trial court to impose a child support order under the guidelines.\nIn a case such as this, the trial court should consider the supporting parent\u2019s previous income when trying to determine his prospective income. However, a court should not base its net income finding on the mere possibility of future financial resources (Harmon, 210 Ill. App. 3d at 96, 568 N.E.2d at 951) or on outdated data that no longer reflect prospective income. (In re Marriage of Schroeder (1991), 215 Ill. App. 3d 156, 161-62, 574 N.E.2d 834, 837-38.) Here, the trial court on remand will have the benefit of being able to consider two more years (1990 and 1991) of Ronald\u2019s self-employed income as reflected by his tax forms. See In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 850, 551 N.E.2d 737, 744.\nTherefore, because Ronald is self-employed, the trial court should start with Ronald\u2019s reported gross income from all sources from the years 1989-1991, not his claimed income after he has deducted therefrom sums permitted under the Federal tax code, and deduct from that figure what it deems appropriate under section 505(aX3)(h) as reasonable and necessary expenses for producing income in determining his net income under the Act. See In re Marriage of Cornale (1990), 199 Ill. App. 3d 134, 136-37, 556 N.E.2d 806, 808 (evidence supported trial court\u2019s finding that purchasing certain assets constituted reasonable and necessary expenses for producing income); Rimkus v. Rimkus (1990), 199 Ill. App. 3d 903, 909, 557 N.E.2d 638, 642 (in determining net income, nonreimbursable expenses are deductible as long as they are reasonable and necessary to produce income); Hart, 194 Ill. App. 3d at 850, 551 N.E.2d at 743 (evidence supported trial court\u2019s finding that purchasing certain assets constituted reasonable and necessary expenses for producing income).\nIn order to avoid an unexplained difference between a supporting parent\u2019s large income and an order for child support payments that reflects a smaller income, trial courts ought to expressly state their findings and calculations. (See In re Marriage of Douglas (1990), 195 Ill. App. 3d 1053, 1059-60, 552 N.E.2d 1346, 1350 (\u201cAbsent such a finding, there is no rational basis upon which we can judge the propriety of the awards\u201d).) On remand in this case, we direct the trial court to determine Ronald\u2019s gross income, indicate which deductions contained in section 505(aX3) of the Act apply and which do not, and then calculate the amount of child support he should pay under the statutory guidelines in section 505(aXl) of the Act. If the trial court decides to deviate from those guidelines, it should specify its reasons for doing so. In making these determinations, the trial court, if it chooses, may receive further evidence relevant to these matters.\n3. Retroactive Child Support\nSusan argues that the trial court abused its discretion in not awarding a retroactive increase in child support back to September 1989, when she filed her most recent petition to modify the judgment of dissolution. Section 510(a) of the Act provides that the court may, but need not, grant a retroactive increase in child support under certain circumstances. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a) (trial court \u201cmay\u201d modify child support obligation \u201cas to installments accruing subsequent to due notice *** of the filing of the motion for modification\u201d).) In the present case, we find no basis on which to conclude the trial court abused its discretion when it denied retroactive support. We note that Ronald caused no delay in the court\u2019s hearing Susan\u2019s petition to modify child support, and the court did hear that petition in a timely fashion. Further, although Susan had petitioned the court in 1987 and 1988 for an increase in support based on the same allegations in her 1989 petition, she failed to pursue those claims.\nB. Susan\u2019s Share of Referral Fees\nSusan next argues that the trial court incorrectly determined her share of Ronald\u2019s referral fees for the cases he referred to other Decatur law firms before he divorced Susan and moved to Florida. The fees from a single case, Lancaster, provided the bulk of the outstanding fees. Regarding Lancaster, the principal difference between the computations of Ronald\u2019s expert and those of Susan\u2019s expert arose out of the manner in which they computed the amount of income tax attributable to the Lancaster fee, which was therefore deductible before determining Susan\u2019s share of the fee. In determining the amount of fees Ronald owed to Susan, the trial court adopted the explanation provided by Ronald\u2019s expert and rejected the calculations of Susan\u2019s expert, explaining that it \u201cfound more persuasive Dr. Langford\u2019s testimony as to the proper method of calculating Susan\u2019s share of Ronald\u2019s referral fees.\u201d The trial court described Dr. Langford\u2019s method as finding the difference between Ronald\u2019s tax obligation with and without the Lancaster fee. However, Dr. Langford\u2019s figure represents 34.8% of the entire fee minus no deductions or expenses. Dr. Langford thus appears to have calculated the amount of tax on the fee as if the entire fee was all net taxable income, without adjustments or deductions.\nMoreover, Dr. Langford calculated the taxes on the Lancaster fee as $81,301.89, while Ronald only paid a total of $55,955 in taxes in 1987. Apparently, Ronald\u2019s business deductions reduced his tax liability significantly. However, his business deductions should not effectively increase his share of the Lancaster fee. Instead, Ronald should receive credit for only the actual income tax he did pay on the Lancaster fee, not the fictional income tax he might have paid without his business deductions. Allowing him to subtract a fictional tax liability furtively increases his share of the Lancaster fee in the amount of the difference between the fictional tax and the actual tax. In sum, Ronald did not pay $81,301 in taxes on the Lancaster fee, and thus should not have received credit for $81,301 as income tax on the fee. Instead, the trial court should subtract the portion of taxes Ronald actually paid on Lancaster, using one of the methods that Susan\u2019s expert employed.\nSusan\u2019s expert, Wayne Lively, properly calculated the tax on the Lancaster fee as less than Ronald\u2019s 1987 total tax liability. From inspecting the tax form, the Lancaster fee constituted the substantial part of his income that year. He declared only $12,490 in gross wages and $259,217 in gross receipts from his business, $233,333 of which came from the Lancaster fee. Susan\u2019s expert testified that after subtracting income taxes on the referral fees, Ronald owed Susan either $32,628.75 (based on a \u201cpro-rata\u201d method that divides the fee collected by the tax rate used by Ronald that year) or $30,335.94 (using the \u201chighest rate\u201d method, which takes the fee collected, subtracts it from the actual tax return, recalculates the tax without the fee, and then subtracts the difference in taxes from the fee). Susan\u2019s expert calculated that Susan\u2019s share amounted to $88,199.79, toward which Ronald had paid only $63,320.00 (leaving a balance of $24,879.79, even though the exhibit at trial labeled the difference as $28,026.23). The calculations by Lively seem far more accurate than those of Dr. Langford.\nLancaster seems a model of how Ronald treated other cases, as well. Ronald used this approach of paying the income tax reduced by his deductions and then deducting an incorrect tax amount before paying Susan\u2019s share. Because the trial court seemed not to have noticed this problem, on remand the court should reexamine Susan\u2019s share of the fees owed in the other cases.\nFinally, we note that the trial court reduced Dr. Langford\u2019s estimate by over $800. Dr. Langford estimated that Susan\u2019s share was $70,849.32, yet the trial court \u201crounded off\u201d its ultimate award to only $70,000. This matter should be corrected on remand.\nC. Susan\u2019s Contempt Conviction\nIn its March 1991 memorandum and in its April 1991 modification order, the trial court found Susan in contempt of court for placing Russell on the plane three days late to visit Ronald. The court found that Susan did this two years in a row (1988 and 1989). The court fined Susan $1,000 for this contempt and offset this amount against the amount the court found that Ronald owed her for her share of the referral fees.\nIn doing so, the trial court did not follow In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 558 N.E.2d 404, which discusses at length the difference between criminal and civil contempt and direct and indirect contempt, as well as the procedural rights that apply to those charged with any form of contempt.\nFirst, Betts distinguished between indirect and direct contempt. Indirect contempt differs from direct contempt solely in whether the court must hear testimony proving the contemptuous conduct or instead has directly witnessed the conduct in the courtroom. (Betts, 200 Ill. App. 3d at 47, 558 N.E.2d at 418.) The present case involves indirect contempt because Susan\u2019s allegedly contemptuous behavior occurred outside of the courtroom.\nSecond, Betts distinguished between criminal and civil contempt. (Betts, 200 Ill. App. 3d at 43-47, 558 N.E.2d at 415-18.) Criminal contempt punishes a contemnor for violating a court order, while civil contempt coerces the contemnor to comply with a court order. (Betts, 200 Ill. App. 3d at 43-47, 558 N.E.2d at 415-18.) The penalties assessed in criminal contempt cases serve to punish the contemnor for the same reasons (deterrence, retribution) that other criminal penalties punish a criminal defendant. (Betts, 200 Ill. App. 3d at 44, 558 N.E.2d at 416.) On the other hand, the penalties in a civil contempt case serve only to coerce the contemnor to comply with a court order, and they must cease when the contemnor complies. (Betts, 200 Ill. App. 3d at 44, 558 N.E.2d at 416.) For instance, a court may imprison or impose a fine that accrues daily until the civil contemnor complies with the court order.\nThe conduct underlying a civil contempt order may also provide the basis for a separate criminal contempt order so long as the court follows the procedural requirements for both types of contempt. (Betts, 200 Ill. App. 3d at 45-46, 558 N.E.2d at 417.) In such a case, the criminal contempt sanctions would retrospectively punish for a prior violation (and deter the contemnor from doing it again), while the civil contempt sanctions would prospectively attempt to coerce the contemnor to comply in the future. Betts, 200 Ill. App. 3d at 46, 558 N.E.2d at 417.\nIn the present case, despite Ronald\u2019s \u201cconcession\u201d that the trial court found Susan in civil contempt, the court clearly imposed a criminal contempt penalty. First, the sanction was punitive and not coercive. Indeed, Ronald\u2019s petition did not seek any sanctions to coerce Susan to perform some future act, but rather looked purely retrospectively at her prior conduct and requested the court to punish her for it. Second, the court did not condition the penalty on anything she might do in the future (such as putting Russell on the plane on time for future visitations), but rather imposed the fine for what she had already done.\nAs for Susan\u2019s procedural rights, the trial court failed to provide Susan with the necessary criminal procedural rights attendant to a charge of indirect criminal contempt. As we clarified in In re Marriage of Alltop (1990), 203 Ill. App. 3d 606, 616, 561 N.E.2d 394, 401, civil contempt proceedings should begin with a \u201cpetition for rule to show cause\u201d why the court should not hold the respondent in contempt for certain conduct. Primarily because the alleged criminal contemnor enjoys the right to remain silent and the presumption of innocence, he is protected from having to prove his innocence or to show why the court should not hold him in contempt.\nThus, criminal contempt proceedings cannot begin with a \u201cpetition for rule to show cause\u201d but instead must begin with a \u201cpetition for adjudication of criminal contempt.\u201d (Alltop, 203 Ill. App. 3d at 616, 561 N.E.2d at 401; see also Betts, 200 Ill. App. 3d at 58-59, 558 N.E.2d at 425.) The different labels not only describe the procedure before the court more correctly, they also notify the respondent if he or she faces criminal and not merely civil penalties. Although Susan did receive her right to confront the witness against her (Ronald), she received no other procedural rights. The trial court erred by treating the matter as a civil proceeding and by strongly implying that she bore the burden of showing why the court should not hold her in contempt. Because Ronald entitled his petition as a \u201cPetition for Rule to Show Cause,\u201d she also did not receive notice that she faced criminal sanctions. (Alltop, 203 Ill. App. 3d at 616, 561 N.E.2d at 401.) For the reasons stated, we reverse the trial court\u2019s contempt finding and the fine it imposed.\nD. Modifying Susan\u2019s Maintenance\n1. The Reviewability of Susan\u2019s Maintenance Award\nIn the original 1986 judgment of dissolution, the court awarded Susan $750 per month ($9,000 per year) in maintenance for four years. The judgment did not address the possibility of any later review or extension of the maintenance order. In 1989, Susan filed a petition to extend the maintenance period and increase the amount of maintenance. In its 1991 memorandum decision on that petition, the trial court determined that, \u201cthe absence of a reservation of right to review the maintenance award in the [original] Judgment is fatal to [Susan\u2019s] petition to extend and increase the maintenance award.\u201d Accordingly, the court held that it could not review or extend the four-year maintenance order it entered in 1986. We thus face the issue of whether a court can modify a maintenance order when the order sought to be modified did not expressly reserve the right of the court to review that order at some future time.\nCiting In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, 512 N.E.2d 30, and In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 426 N.E.2d 1066, Ronald argues that the court properly considered the time period of a rehabilitative maintenance award as nonextendable because the court that originally awarded rehabilitative maintenance had already implicitly determined that the maintenance should not extend beyond the rehabilitative period. Accordingly, Ronald argues that if Susan wanted the court to retain jurisdiction to extend the maintenance period, she must have appealed the original order on the ground that the court abused its discretion by not expressly retaining jurisdiction to extend the maintenance period, if warranted.\nAlbiani and Asch do not support Ronald\u2019s position. Indeed, both cases involve direct appeals of an original dissolution judgment, not an attempt to later modify it. (Albiani, 159 Ill. App. 3d at 522, 512 N.E.2d at 32; Asch, 100 Ill. App. 3d at 296, 426 N.E.2d at 1068.) Moreover, in both cases the trial court expressly stated its intention to review the maintenance award at a later date. (Albiani, 159 Ill. App. 3d at 522, 512 N.E.2d at 32 (trial court held that \u201cthe Petitioner *** shall pay to the Respondent *** the sum of [$750] per month, for a period of twenty-four (24) months, at which time the aforementioned award shall be reviewed by a court of competent jurisdiction\u201d); Asch, 100 Ill. App. 3d at 296, 426 N.E.2d at 1068 (court noted that \u201cthe maintenance would continue for three years, at which time the court would determine whether respondent had made appropriate and reasonable efforts to procure suitable employment and maintain herself financially\u201d).) Indeed, this court has cited Asch favorably for the proposition that a trial court can properly retain jurisdiction to review a maintenance award at a later date. See In re Marriage of Hensley (1991), 210 Ill. App. 3d 1043, 1050, 569 N.E.2d 1097, 1101.\nContrary to Ronald\u2019s argument, the Fifth District Appellate Court in Rice v. Rice (1988), 173 Ill. App. 3d 1098, 1102, 528 N.E.2d 14, 17, held \u201cthat where the trial court has not expressly reserved jurisdiction to extend the term of rehabilitative maintenance, the court retains authority to extend the maintenance beyond the original term *** [as long as] the petition for modification is filed during the period set for rehabilitative maintenance.\u201d (See also In re Marriage of Robinson (1989), 184 Ill. App. 3d 235, 239-40, 539 N.E.2d 1365, 1367-68 (wherein fifth district recognized the continuing authority of a court to modify a maintenance order in the absence of any express reservation by the court to review that order at some future time).) Because Susan filed her petition to extend maintenance within the period of maintenance set in the 1986 judgment, the trial court could grant her petition if, in its discretion, it thought an extension appropriate.\nThis result comports with the clear intent of the legislature. Section 510(a) of the Act provides that \u201cthe provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial change in circumstances.\u201d (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) The legislature would not have provided for modification of a maintenance order if it intended the original maintenance order to be final and nonmodifiable.\nIndeed, by allowing courts to modify maintenance and support orders, the legislature wisely recognized that such orders are prospective in effect, and however appropriate they may be when entered, their continuing appropriateness depends on how accurately they predict the future circumstances of the parties. These prospective orders differ substantially from most other court orders, such as those arising in ordinary tort or contract litigation, because the facts that underlie the court\u2019s determination have already occurred. Parties will not be permitted to modify retrospective orders \u2014 such as the division of the marital estate at the time of the marital dissolution \u2014 because the court has already heard all the evidence the parties presented on the issue the order addresses and rendered a judgment on that evidence \u2014 the retrospective order. However, parties can modify prospective orders \u2014 such as orders of maintenance and support \u2014 because when entering such orders, the court does so by gazing into a cloudy crystal ball and attempting to predict what the future holds for the parties before it. If future circumstances differ from the court\u2019s predictions (as manifested by its order), then the parties may petition the court, in compliance with the requirements of section 510 of the Act, to modify its original order to accommodate for the change in circumstances.\nWe have recently recognized this tacit distinction between retrospective and prospective orders by holding that a trial court possessed the continuing authority to vacate or modify a protective order in the absence of any express reservation by the court to review that order at some future time. (In re Marriage of Fischer (1992), 228 Ill. App. 3d 482, 488, 592 N.E.2d 604, 608.) Furthermore, the court in In re Marriage of Petramale (1981), 102 Ill. App. 3d 1049, 1053, 430 N.E.2d 569, 573, recognized the inherent jurisdiction of a trial court to modify a child support order without needing to expressly retain jurisdiction to do so. Taken together with Rice and Robinson, we find these cases as strong authority for our holding in the present case.\nThe legislature\u2019s wisdom of permitting modifications of support orders due to changed circumstances has manifested itself in this case. In 1986 when the court awarded maintenance to Susan, the court considered not only Susan\u2019s needs, but also Ronald\u2019s ability to pay maintenance based on anticipated income. We can determine what the court in 1986 found Ronald\u2019s income to be by again using the child support order and the statutory guidelines for such orders under section 505(a) of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 505(a)). In the original order, the court set Ronald\u2019s child support obligation at $750 per month for all three children. According to section 505(aXl), that figure for support of three children should have represented 32% of Ronald\u2019s projected net income. (Ill. Rev. Stat. 1985, ch. 40, par. 505(aXl).) Based upon the $750 per month (or $9,000 per year) child support obligation \u2014 excluding the obligation to provide for health care \u2014 the original court thus must have found that Ronald had a projected net income of approximately $28,125. However, as discussed earlier in this opinion, Ronald has instead consistently earned solid six-figure gross incomes for most of the years since the judgment of dissolution. Even after accounting for the allowable deductions under section 505(aX3) of the Act and for Ronald\u2019s payment of the children\u2019s health insurance, the original order grossly underestimated Ronald\u2019s projected income. Thus, Susan could, and did, appropriately petition the court for increased maintenance.\nOur holding in this case is not the result of an effort to protect the interests only of the supported ex-spouse. To put the matter in Ronald\u2019s favor, suppose Susan had won the lottery or had written a best-seller for which she received a million-dollar advance two years after the court rendered its original maintenance order in 1986. Under either circumstance, Ronald would petition the court to vacate the maintenance order regardless of the fact that the original order had set a four-year term of maintenance. Further, the trial court would surely view Ronald\u2019s petition favorably because an unexpected turn of events would have rendered the original order of maintenance \u2014 no matter how appropriate it was at the time of its entry \u2014 unnecessary and inequitable.\nIn addition, Ronald\u2019s argument suggests that, in order to retain a petition for a modification of her maintenance award, Susan was required to appeal the original maintenance order on the ground that the trial court abused its discretion by not expressly providing that it retained jurisdiction to review and extend the maintenance award, as did the trial courts in Albiani and Asch. We disagree. Section 510(a) of the Act gives Susan the right to petition the court to modify its original order of maintenance upon a showing of a substantial change of circumstances (Ill. Rev. Stat. 1989, ch. 40, par. 510(a)). Surely she need not appeal the original order just to retain her statutory right to seek a modification of it if a substantial change in circumstances occurs. Ronald\u2019s argument would require Susan to \u201cperfect\u201d her right to petition for modification before she knows whether she will ever be interested in so petitioning. Such a requirement would waste judicial resources in exchange for no discernible benefit to either party or the judicial system.\n2. The Substance of Susan\u2019s Maintenance Award\nIn denying Susan\u2019s request to extend and increase maintenance, the trial court held the following:\n\u201c[R]egardless of the absence of a reservation of right to review in the Rehabilitation Award in the Judgment of Dissolution of Marriage, [Susan] failed to fulfill her affirmative duty to acquire sufficient education or training to find employment and become financially independent from the time of entry of the Judgment of Dissolution of Marriage until March 1, 1990. *** [W]hile [Susan] met with some unexpected challenges during the period of Rehabilitative Maintenance, the Court finds that the responsibility for failure to acquire the education or training needed and to find adequate employment rests with her and her alone. The Court further finds that [Susan] has had sufficient means, opportunity, ability, and a reasonable time to obtain gainful employment, training and financial independence during the rehabilitative period of 48 months.\u201d\nAs with awarding child support, awarding and modifying maintenance rests within the sound discretion of the trial court and we will not disturb its judgment absent an abuse of that discretion. (In re Marriage of Kerber (1991), 215 Ill. App. 3d 248, 252, 574 N.E.2d 830, 832-33.) \u201cThe benchmark for a determination of maintenance is the reasonable needs of a spouse seeking maintenance in view of the standard of living established during the marriage, the duration of the marriage, the ability to become self-supporting, the income-producing property of a spouse, if any, and the value of the nonmarital property.\u201d In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 379, 571 N.E.2d 1135, 1140.\nThe court in 1986 awarded Susan \u201crehabilitative maintenance,\u201d intending thereby to provide Susan with the opportunity to adjust to non-marital life and to provide herself with independent means of support. (See Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 489, 509 N.E.2d 729, 734.) However, the duty to seek financial independence does not require the party receiving maintenance to liquidate his or her assets in order to achieve that independence. (Cheger, 213 Ill. App. 3d at 379-80, 571 N.E.2d at 1141.) Further, the goal of financial independence \u201cmust be balanced against a realistic appraisal of the likelihood that the spouse will be able to support herself in some reasonable approximation of the standard of living established during the marriage.\u201d (Cheger, 213 Ill. App. 3d at 378, 571 N.E.2d at 1140.) Indeed, this court has held that when the facts make it clear that one spouse is unable to support herself in the manner in which they lived during the marriage, then it is an abuse of discretion to award only rehabilitative maintenance. Kerber, 215 Ill. App. 3d at 253, 574 N.E.2d at 833.\nIn Kerber, the former wife had only a high school education, did not work outside the home during the parties\u2019 30-year marriage, and possessed no marketable jobs skills by which she could support herself. On these facts, this court wrote that \u201c[a] spouse need not be reduced to poverty before maintenance is appropriate\u201d and \u201ca spouse is not required to sell off his or her assets or capital in order to maintain the standard of living established during the marriage.\u201d (Kerber, 215 Ill. App. 3d at 252, 574 N.E.2d at 832.) Therefore, we held that the trial court abused its discretion by awarding her only rehabilitative maintenance for one year, at which time the court would review the award, instead of permanent maintenance. (Kerber, 215 Ill. App. 3d at 253, 574 N.E.2d at 833.) In so holding, the Kerber court quoted the following from the special concurrence in In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 853, 551 N.E.2d 737, 745 (Steigmann, J., specially concurring):\n\u201c \u2018Marriage is a partnership, not only morally, but financially. Spouses are coequals, and homemaker services must be recognized as significant when the economic incidents of divorce are determined. [The former homemaker] should not be penalized for having performed [his or] her assignment under the agreed-upon division of labor within the family. It is inequitable upon dissolution to saddle [the former homemaker] with the burden of [his or] her reduced earning potential and to allow [the former wage-earning spouse] to continue in the advantageous position he [or she] reached through their joint efforts.\u2019 \u201d Kerber, 215 Ill. App. 3d at 253-54, 574 N.E.2d at 833.\nThe trial court in this case not only erroneously viewed the original maintenance award as nonmodifiable, it also incorrectly viewed the policies underlying maintenance awards by denying Susan\u2019s petition to extend and increase her maintenance because she had not found a full-time job in the four years since the judgment of dissolution. The parties in this case have nothing close to equal earning potential, partly as a result of Susan\u2019s performing \u201c \u2018her assignment [as a homemaker] under the agreed-upon division of labor within the family.\u2019 \u201d (Kerber, 215 Ill. App. 3d at 253-54, 574 N.E.2d at 833, quoting Hart, 194 Ill. App. 3d at 853, 551 N.E.2d at 745 (Steigmann, J., specially concurring).) During their 17-year marriage, the parties in this case had agreed that Susan would take care of the home and Ronald would earn the money. Indeed, Susan testified that although she supported Ronald through his final year in law school (the first year of their marriage), Ronald thereafter did not want her to work. Accordingly, she stayed at home to be a homemaker and to raise their children. In so doing, Susan remained out of the work force for 17 years, thereby significantly depreciating her marketability and, perhaps, the workplace skills she formerly possessed.\nViewed in practical terms, Ronald may not have been able to develop his career as successfully as he did without Susan\u2019s support in her role as the family\u2019s designated homemaker. Viewed in legal terms, their marriage, because of its duration and circumstances, constituted a \u201cmoral and financial\u201d partnership in which the interest of each partner can be neither easily ascertained nor easily terminated because of the substantial and continuing effect that partnership has had and will likely continue to have on their lives.\nContrary to our view of the policies underlying maintenance, the trial court viewed the matter as if Susan bore an obligation to find a full-time job to support herself (which at best would have provided her with but a fraction of Ronald\u2019s income or the income they enjoyed while married), and her failure to do so precluded her from receiving any extension or increase in her maintenance. In punishing Susan for what the court perceived as her lack of diligence, the court unduly encroached upon Susan\u2019s reasonable expectations to be able to live in the future in a fashion remotely resembling how she had been able to live in the past. Susan\u2019s expectations in this regard are particularly reasonable in view of Ronald\u2019s six-figure income.\nThe gross disparity in Susan and Ronald\u2019s potential incomes and the apparently drastic change in Susan\u2019s lifestyle support her claim that her maintenance should be extended and increased. Susan likely will never fully regain the career opportunities she lost during her 17-year marriage, yet Ronald still possesses the career skills he cultivated during their marriage to regularly earn a six-figure income. Further, while the trial court may consider Susan\u2019s not obtaining a job to support herself, \u201c[e]mployment or potential employment of the spouse seeking [maintenance] is only one factor to consider in determining whether [maintenance] should be awarded, and its duration.\u201d (In re Marriage of Bramson (1981), 100 Ill. App. 3d 657, 659, 427 N.E.2d 285, 287.) We also note that even Ronald\u2019s expert, Dr. Langford, testified that the specific jobs available in Central Illinois to a person with Susan\u2019s skills pay a salary ranging only from $14,000 to $19,000 per year. To the extent that the court finds Susan dilatory or even directly at fault for not obtaining suitable employment, the court can offset any potential salary she could have earned from its maintenance award. However, to completely deny her any extended or increased maintenance on that basis constitutes an abuse of discretion.\nFor the reasons stated, we vacate the trial court\u2019s denial of Susan\u2019s petition to extend and increase her maintenance, and we remand with directions that the trial court consider that petition anew in accordance with the views regarding maintenance expressed herein. Accordingly, the trial court on remand should consider the nature of Susan and Ronald\u2019s moral and financial partnership during the course of their 17-year marriage. Kerber, 215 Ill. App. 3d at 253, 574 N.E.2d at 833.\n3. Evidence of Susan\u2019s Lifestyle During the Marriage\nAt the August 1990 hearing, Susan began to testify about how she supported Ronald through law school but then quit work (save for substitute teaching) because Ronald \u201cnever wanted me to work at all.\u201d Ronald\u2019s attorney objected, stating that \u201cthis woman relitigates this divorce every time we have a hearing. We go back into facts and matter[s] which have [already] been litigated with various judges.\u201d The court sustained the objection, stating that \u201cI think getting into some employment she may or may not have had during the first year of marriage is too remote, and moreover, [the judge in the original dissolution proceedings] would have considered that evidence in making his ruling for maintenance for four years.\u201d\nWhen evidence of Susan\u2019s prior lifestyle again arose, Ronald\u2019s attorney again objected on the ground that the original judge had considered her prior lifestyle in setting rehabilitative maintenance that was supposed to allow her to readjust. The court sustained the objection as to facts prior to the dissolution judgment, but allowed Susan to testify as to a change in circumstances after that date that would warrant continuing the maintenance beyond the rehabilitative period, thereby temporarily leaving open the issue of whether the court could extend Susan\u2019s maintenance. (The court later ruled that it could not.)\nBecause we reverse the trial court\u2019s rulings both as to the non-modifiability of the original maintenance order and as to the denial of Susan\u2019s petition to extend and increase her maintenance, we conclude that on remand the court should admit testimony on how the parties lived during their marriage. Such testimony would bear directly on the propriety of any extended and increased maintenance, as we discussed earlier in this opinion. Further, such evidence would be relevant to an evaluation of the reasonableness of Susan\u2019s expectations about the lifestyle she would have led had no dissolution of marriage occurred, as compared to the lifestyle she will be living without extended or increased maintenance.\nE. Ronald\u2019s Obligation To Provide Susan with His Tax Forms\nIn its 1991 order responding to the parties\u2019 various petitions, the trial court, without explanation, vacated the requirement that Ronald annually furnish Susan with copies of his Federal tax returns. As far as we can tell from the record, the court apparently vacated this requirement without any party so requesting. Susan argues that the court\u2019s action was an abuse of its discretion, and we agree, especially in the absence of any explanation for this action. We therefore instruct the court on remand to reinstate this requirement on Ronald.\nF. Susan\u2019s Motion for Attorney Fees\nIn its 1991 order, the trial court expressly denied Susan\u2019s request for attorney fees because \u201ceach party has sufficient assets or income to pay his or her own attorneys\u2019 fees.\u201d Susan argues that because she prevailed below (although not to the extent she thinks appropriate) on the issue of her share of Ronald\u2019s referral fees, the court should have awarded her attorney fees under section 508(b) of the Act, which makes the award of attorney fees mandatory if the court finds that the failure to comply with the order or judgment was without cause or justification. Ill. Rev. Stat. 1989, ch. 40, par. 508(b).\nRonald responds that the trial court did not find that he violated the court order \u201cwithout cause or justification,\u201d which section 508(b) requires before the court is required to award attorney fees. Ronald is correct on this point, but a court still has discretion to award attorney fees under section 508(a) of the Act when one party lacks sufficient financial resources to obtain or retain legal representation. (Ill. Rev. Stat. 1989, ch. 40, par. 508(a).) A trial court abuses its discretion in not awarding attorney fees under section 508(a) of the Act when the evidence reveals a great disparity in actual earnings and earning capacity. (In re Marriage of Gable (1990), 205 Ill. App. 3d 696, 700, 563 N.E.2d 1215, 1217-18; In re Marriage of Edsey (1990), 199 Ill. App. 3d 39, 57, 556 N.E.2d 552, 563.) The trial court can award attorney fees when the spouse seeking relief demonstrates (1) financial inability to pay, and (2) the ability of the other spouse to pay. (Edsey, 199 Ill. App. 3d at 57, 556 N.E.2d at 563.) Financial inability exists when payment would strip a party of his or her means of support and would undermine his or her economic stability, but it does not require the party to show destitution. Gable, 205 Ill. App. 3d at 700, 563 N.E.2d at 1218; Edsey, 199 Ill. App. 3d at 57, 556 N.E.2d at 563.\nAlthough the trial court found that both parties have sufficient assets or income to pay their own attorney\u2019s fees, the evidence establishes a gross disparity in Susan\u2019s and Ronald\u2019s actual incomes and income potential, which would warrant the trial court to award such fees. Because this case is being returned to the trial court for further proceedings on other matters, we vacate the court\u2019s denial of Susan\u2019s request for attorney fees and remand for the court to reconsider whether Susan deserves a discretionary award for attorney fees under section 508(a) of the Act.\nG. Susan\u2019s Right To Visitation During Ronald\u2019s Summer Visitation\nIn its memorandum of decision and in its order of modification, the trial court wrote, \u201cDuring the summer visitation period, [Susan] shall not be entitled to visitation with the minor child except as the parties may agree.\u201d Citing In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 547 N.E.2d 590, Susan argues on appeal that denying her visitation during the two months Russell visits Ronald in Florida constitutes an abuse of discretion.\nBy granting Susan visitation conditioned upon the parties agreeing to it, the trial court indicated that Susan should not be denied visitation. However, nothing as important as visitation should be contingent on these two people coming to any agreement. In hotly disputed dissolution cases like this, where the parties may have used their children\u2019s affection and court petitions as weapons to manipulate and hurt each other, it behooves the trial court to thoroughly and explicitly set forth every duty and right of the parties regarding visitation in order to avoid providing them with grounds for further disputes. To do otherwise invites their inevitable return to court at some future time, asking the court to clarify alleged ambiguities.\nFor the reasons stated, we reverse the visitation order in question and remand for further proceedings on that matter consistent with the views expressed herein.\nIII. Conclusion\nFor the foregoing reasons, we reverse those portions of the trial court\u2019s 1991 order of modification discussed herein and remand for further proceedings consistent with the views and directions contained herein.\nAffirmed in part; reversed in part and remanded with directions.\nKNECHT, J., concurs.", "type": "majority", "author": "JUSTICE STEIGMANN" }, { "text": "JUSTICE LUND,\ndissenting:\nI dissent from that portion of the majority decision which reverses the decision of the trial court and provides for modification of the term for rehabilitative maintenance. I also dissent from the majority\u2019s reversal of the trial court\u2019s determination of the amount owed respondent by petitioner for respondent\u2019s share of the Lancaster fee. I agree with reconsideration of the child support, but with specific conditions. I dissent from the order directing the trial court to reconsider its decision, which grants two months\u2019 uninterrupted visitation with Russell during the summer.\nI. Child Support And The Guidelines\nI concur with remanding the question of child support back to the trial court, but for reasons different than those given by the majority in section I of that opinion. I question the majority\u2019s suggestion that petitioner\u2019s evidence relating to the 1990 income \u201cmost likely does not reflect his actual 1990 income.\u201d (232 Ill. App. 3d at 817, 597 N.E.2d at 855.) I would prefer that credibility be left to the fact finder. Another concern I have is with the blind use of gross income figures from 1986 and 1987.\nThe 1987 tax year included the $233,333 Lancaster fee, one-half of which (after taxes) was owned by respondent. Petitioner had no legal right to spend respondent\u2019s share. Why should it then be included in determining an average child support? Absent one-half of the fee ($116,667), the gross income in 1987 would be reduced to $55,184. How much of the 1986 gross income was attributable to respondent\u2019s 30% share of cases petitioner referred to other firms when he left Illinois?\nOn reconsidering child support, a careful analysis should be made of earned income from the various years. Funds going to respondent should not be considered part of petitioner\u2019s income for purposes of determining his net income to which the child-support guideline should be applied.\nSetting the child support will require many determinations by the trial court. I suggest specific findings relating to the determinations, so that if review is required we can have the benefit of the fact finder\u2019s reasoning.\nII. The Trial Court Determination Of The Lancaster Fee Tax Deduction Should Be Affirmed.\nThe trial court awarded respondent one-half the Lancaster fee after the deduction for taxes. That fee, in the amount of $233,333, was received in 1987, and $63,320 was paid by petitioner to respondent. The problem arises because of the computation of the income tax on respondent\u2019s one-half of the fee.\nA search of the Internal Revenue Code (26 U.S.C. \u00a71 et seq. (1988)) fails to disclose a method by which the taxability of a portion of petitioner\u2019s earnings could be transferred to his ex-wife. Several methods of allocation of the tax can be argued \u2014 one of which would allow respondent to benefit from petitioner\u2019s substantive expense deductions in 1987. This would result in a tax charged to respondent of substantially less than that suggested by petitioner\u2019s \u201cexpert\u201d and adopted by the trial court.\nIt appears that an allocation similar to, but not exactly that of petitioner\u2019s expert, would be the proper method. Petitioner should have the benefit of any of his expenses and deductions which reduced the taxable income below the amount of the total Lancaster fee. His share of the fee and his other earnings were used to pay the amounts which resulted in reducing the taxable income. Respondent\u2019s share was not, and could not be, so used. Why should respondent be allowed to benefit from petitioner\u2019s payments from his own funds?\nMy calculation of what would have been petitioner\u2019s 1987 income tax, if petitioner\u2019s taxable income had been $233,333, is $83,797. Thus, $41,899 would have been deducted from respondent\u2019s $116,667 share. This would result in a tax on respondent\u2019s share equal to 35.9%.\nUsing the 1987 tax rate schedule for a single taxpayer for calculation purposes, the $55,955 tax shown on petitioner\u2019s 1987 Federal income tax return would indicate a taxable income of $161,016. Respondent\u2019s $116,667 is 72.46% of the $161,016; 72.46% of the $55,955 tax is $40,543; and the effective tax rate on respondent\u2019s $116,667 is 34.75%. Petitioner\u2019s expert, Dr. Langford, came up with a tax attributable to respondent of one-half of $81,301 ($40,651) using a computation somewhat different than mine. Dr. Langford\u2019s suggestion was followed by the trial court. The difference between $40,651 and $40,543 is nominal and does not justify reversal. I would affirm the trial court on this issue.\nIII. Is The Four-Year Maintenance Term Modifiable?\nThe original dissolution judgment provided for \u201crehabilitative\u201d maintenance for a period of four years. There was no provision for subsequent review of the maintenance. I disagree with the majority opinion that the term of this maintenance is subject to modification as held in section III of that opinion, and suggest that the issue of reviewability should have been contested by appealing from the initial judgment of dissolution.\nAn award of maintenance is within the court\u2019s discretion and will not be reversed on appeal unless contrary to the manifest weight of the evidence or an abuse of discretion. (In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 851, 551 N.E.2d 737, 744 (Steigmann, J., specially concurring).) Rehabilitative or time-limited maintenance under section 504(bX2) of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 504(b)(2)) is often appropriate. (See In re Marriage of Hackett (1986), 113 Ill. 2d 286, 293-94, 497 N.E.2d 1152, 1155; In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 719, 437 N.E.2d 1300, 1306-07.) The purpose of such maintenance is to provide incentives for the spouse receiving support to reach self-sufficiency. (In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 715, 462 N.E.2d 596, 603.) The maintenance should be terminated, even after a long-term marriage, when the spouse receiving the maintenance has become virtually self-sufficient. (In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 322, 480 N.E.2d 147, 149-50.) However, even if employment exists, the ability to earn sufficient income to provide reasonable needs must be considered. (See In re Marriage of Ingrassia (1986), 140 Ill. App. 3d 826, 834-35, 489 N.E.2d 386, 392.) Rehabilitative maintenance came into existence with the passage of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 504(b)). (See also 1 H. Gitlin, Gitlin on Divorce \u00a715.10 (1992).) The concept of marital property as set forth in section 503 of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 503) introduced a new concept into the marriage relationship and gave the nontitle-holding spouse property rights not previously existing. The property allocation became a more significant factor in determining maintenance. 1 H. Gitlin, Gitlin on Divorce \u00a715.10 (1992).\nI agree that maintenance limited for a specific time, without a provision for review, is not given favor over permanent maintenance. (See In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 351-52, 461 N.E.2d 447, 456; see also 1 H. Gitlin, Gitlin on Divorce \u00a715.10, at 334 (1992).) The decisions in In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 464-65, 426 N.E.2d 1087, 1096, and In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, 524-25, 512 N.E.2d 30, 32-33, are illustrative of situations where maintenance limited to a time period was improper (long-term marriage, spouse older and not in good health) and where it was proper (spouse given maintenance for 24 months was in good health, age 47, had a degree in education, and received property interest). Our court has recognized the obligation of the maintenance-receiving spouse to use existing skills and the ability to obtain future skills so that employment can be obtained. In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 634, 450 N.E.2d 1229, 1234.\nWith that premise, I now turn to my reasons for saying that we should not now modify the four-year term for rehabilitative maintenance. Section 504(b) of the Act specifically states that maintenance \u201cmay be in gross or for fixed or indefinite periods of time.\u201d (Ill. Rev. Stat. 1991, ch. 40, par. 504(b).) A decree is final for appeal purposes, even though there is a provision reserving the right to review the award of maintenance at some specific time in the future. (In re Marriage of Cannon (1986), 112 Ill. 2d 552, 556, 494 N.E.2d 490, 492.) In a case specifically providing for review, the parties are aware of the possibility of review of the time period when the final dissolution is entered and, if unhappy with the review provision, could then seek appellate relief. When, as here, there is no indication of reviewability of the maintenance time period and a fixed time period is set forth, it would appear that modification was not intended. Because maintenance is determined in part by the allocation of property (Ill. Rev. Stat. 1991, ch. 40, par. 504(bXl)), the party obligated to pay a time-limited maintenance might, because of the limited time maintenance that was awarded, forego appellate review of what may be an unfair property division. Foregoing immediate review of that property allocation bars any future reconsideration of that property allocation. Because the limited term is related to property allocation, that term also should be nonmodifiable after the original dissolution judgment is no longer ap-pealable.\nWhile recognizing that section 510(a) of the Act provides in part that \u201cany judgment respecting maintenance or support may be modified\u201d (emphasis added) (Ill. Rev. Stat. 1991, ch. 40, par. 510(a)), I do not conclude that the modification extends to the fixed term of rehabilitative maintenance. The wording of section 510 of the Act is general, while that part of section 504(b) of the Act, which states \u201cmay be in gross or for fixed or indefinite periods of time\u201d (Ill. Rev. Stat. 1991, ch. 40, par. 504(b)), is specific. Does the majority suggest that maintenance in gross is modifiable because of the language in section 510 of the Act? I would affirm the trial court\u2019s refusal to modify the original four-year time frame for maintenance and, in so doing, I am well aware of the dictum in Rice v. Rice (1988), 173 Ill. App. 3d 1098, 1102, 528 N.E.2d 14, 17, cited by the majority.\nIV. Petitioner\u2019s Uninterrupted Visitation With Russell. Section 607(a) of the Act provides, in part, as follows:\n\u201cA parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child\u2019s physical, mental, moral or emotional health.\u201d Ill. Rev. Stat. 1989, ch. 40, par. 607(a).\nMatters of child custody, including visitation, rest largely in the discretion of the trial court, and that court\u2019s decision will not be disturbed unless it is against the manifest weight of the evidence. In re Marriage of Johnson (1981), 100 Ill. App. 3d 767, 769-70, 427 N.E.2d 374, 376; Rodely v. Rodely (1963), 28 Ill. 2d 347, 350, 192 N.E.2d 347, 349; Dog- gett v. Doggett (1977), 51 Ill. App. 3d 868, 871, 366 N.E.2d 985, 987; see generally 1 H. Gitlin, Gitlin on Divorce \u00a714 (1992).\nThe trial court\u2019s opinion in the present case provided petitioner with two months\u2019 visitation in Florida \u2014 and prohibited respondent\u2019s visitation during that period of time unless the parties agreed. Respondent argues our decision in In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 264, 547 N.E.2d 590, 598, requires otherwise. I suggest our decision in Bush is not applicable to the present facts. The child in Bush was born October 10, 1984, and was a child of tender years. The parents lived approximately 50 miles apart. We recently cited Bush in our opinion in In re Marriage of Evans (1992), 229 Ill. App. 3d 932, where the father had not seen the mentally handicapped 11-year-old child for six years and lives six to seven hours from the financially strapped custodial mother. Here, we have Russell \u2014 born January 1981 (11 years of age), evidently of at least average abilities, who has had visitation with his father. The trial court talked with Russell to obtain his thoughts on visitation and the problems between the petitioner and the respondent. I would find that the court\u2019s decision granting two months\u2019 uninterrupted child visitation with petitioner was not an abuse of discretion and should be affirmed.", "type": "dissent", "author": "JUSTICE LUND," } ], "attorneys": [ "Michael B. Metnick and Diana Cherry, both of Metnick, Barewin & Wise, of Springfield, for appellant.", "Robert G. Heckenkamp, of Heckenkamp, Simhauser & LaBarre, P.C., of Springfield, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF RONALD L. CARPEL, Petitioner-Appellee, and SUSAN K. CARPEL, n/k/a Susan K. Kolinger, Respondent-Appellant.\nFourth District\nNo. 4\u201491\u20140268\nOpinion filed July 30, 1992.\nRehearing denied August 31, 1992.\nMichael B. Metnick and Diana Cherry, both of Metnick, Barewin & Wise, of Springfield, for appellant.\nRobert G. Heckenkamp, of Heckenkamp, Simhauser & LaBarre, P.C., of Springfield, for appellee." }, "file_name": "0806-01", "first_page_order": 826, "last_page_order": 858 }